BILL NUMBER: SB 377	CHAPTERED  10/10/99

	CHAPTER   806
	FILED WITH SECRETARY OF STATE   OCTOBER 10, 1999
	APPROVED BY GOVERNOR   OCTOBER 7, 1999
	PASSED THE SENATE   SEPTEMBER 8, 1999
	PASSED THE ASSEMBLY   SEPTEMBER 3, 1999
	AMENDED IN ASSEMBLY   SEPTEMBER 1, 1999
	AMENDED IN ASSEMBLY   AUGUST 24, 1999
	AMENDED IN ASSEMBLY   JULY 15, 1999
	AMENDED IN ASSEMBLY   JUNE 30, 1999
	AMENDED IN SENATE   APRIL 27, 1999
	AMENDED IN SENATE   APRIL 14, 1999
	AMENDED IN SENATE   MARCH 15, 1999

INTRODUCED BY   Senator Polanco

                        FEBRUARY 11, 1999

   An act to amend Sections 18935 and 19683 of the Government Code,
to amend Section 289.6 of, and to repeal and add Section 6129 of, the
Penal Code, relating to corrections.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 377, Polanco.  Criminal conduct of state employees.
   Existing law provides that the State Personnel Board may refuse to
examine, or after examination, may refuse to declare as eligible, or
may withhold or withdraw from certification, prior to appointment,
persons within specified categories.
   This bill would provide as an additional category, persons who
have engaged in unlawful reprisal or retaliation against other
persons employed by specified state agencies.
   Existing law requires any state officer or employee filing a
complaint of reprisal or retaliation to have also previously filed a
complaint of improper governmental activity with the Joint
Legislative Audit Committee.
   This bill, instead, would require the complaint of improper
governmental activity to be filed with the State Auditor, or with the
Inspector General, as specified.
   Under existing law, an employee or officer of a public entity or
an employee, officer, or agent of a private person or entity that
provides a detention facility or staff for a detention facility under
contract with a public entity, who engages in sexual activity with a
consenting adult who is confined in a detention facility, as
defined, is guilty of a misdemeanor.  A second violation of that
provision is a felony.  "Detention facility" is defined for these
purposes under existing law to include a health facility.
   This bill would remove the definition of "health facility" from
its present inclusion within the term "detention facility."  The bill
would recast existing law to provide that the above provision
applies to employees of health facilities, and add the application of
that provision to employees of a department, board, or authority
under the Youth and Adult Correctional Agency, or a facility under
contract to a department, board, or authority under the Youth and
Adult Correctional Agency.  The bill would also expand the definition
of "sexual activity" for purposes of the provisions.  By expanding
the scope of a crime, this bill would impose a state-mandated local
program.
   The bill would provide for misdemeanor and felony punishments, as
specified, for violation of certain provisions.  By changing the
definition of a crime, this bill would impose a state-mandated local
program.
   The bill would also provide that an employee of a department,
board, or authority under the Youth and Adult Correctional Agency
convicted of a felony under these provisions would be terminated
pursuant to provisions of the State Civil Service Act, and would not
be eligible to be hired or reinstated by a department, board, or
authority under the Youth and Adult Correctional Agency.
   Existing law provides that certain state employees who
intentionally engage in acts of reprisal, retaliation, threats, or
other proscribed conduct against a state employee, as specified, who
has disclosed what the employee believes to be improper government
activities, shall be disciplined.  Existing law also provides that
certain state employees who engage in the above-proscribed acts shall
be liable in an action for damages, and may be liable for punitive
damages and attorney's fees, as specified.
   This bill would provide that the above-described provisions also
apply where the proscribed conduct is directed against an employee,
as defined, (1) who has disclosed or is disclosing to any employee at
a supervisory or managerial level what the employee believes to be
improper government activities, or (2) who has cooperated or is
cooperating with any investigation of improper government activity.
   This bill would also specify the minimum discipline that the
offending employee would be subject to, and define what the term
"retaliation" means for purposes of the act.  This bill would also
declare that nothing in the act would prohibit the employing entity
from making any decision exercising its authority to terminate,
suspend, or discipline an employee who engages in conduct prohibited
by the act.
  The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state.  Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  The Legislature finds and declares that the mission of
the Youth and Adult Correctional Agency and all of the boards and
departments under its jurisdiction is such a serious matter that any
incident of staff misconduct is an unacceptable risk to the public
safety of all Californians. Similarly, any incident of retaliation
against an employee who reports improper governmental activities is
unacceptable.   In that vein, the purpose of this bill is to assure
the people of California that reports of improper governmental
activity by corrections employees are responded to expeditiously and
appropriately, and without retaliation.
  SEC. 2.  Section 18935 of the Government Code is amended to read:
   18935.  The board may refuse to examine or, after examination, may
refuse to declare as an eligible or may withhold or withdraw from
certification, prior to appointment, anyone who comes under any of
the following categories:
   (a) Lacks any of the requirements established by the board for the
examination or position for which he or she applies.
   (b) At the time of examination has permanent status in a position
of equal or higher class than the examination or position for which
he or she applies.
   (c) Is physically or mentally so disabled as to be rendered unfit
to perform the duties of the position to which he or she seeks
appointment.
   (d) Is addicted to the use of intoxicating beverages to excess.
   (e) Is addicted to the use of controlled substances.
   (f) Has been convicted of a felony, or convicted of a misdemeanor
involving moral turpitude.
   (g) Has been guilty of infamous or notoriously disgraceful
conduct.
   (h) Has been dismissed from any position for any cause which would
be a cause for dismissal from the state service.
   (i) Has resigned from any position not in good standing or in
order to avoid dismissal.
   (j) Has intentionally attempted to practice any deception or fraud
in his or her application, in his or her examination or in securing
his or her eligibility.
   (k) Has waived appointment three times after certification from
the same employment list.
   (l) Has failed to reply within a reasonable time, as specified by
the board, to communications concerning his or her availability for
employment.
   (m) Has made himself or herself unavailable for employment by
requesting that his or her name be withheld from certification.
   (n) Is, in accordance with board rule, found to be unsuited or not
qualified for employment.
   (o) Has engaged in unlawful reprisal or retaliation in violation
of Article 3, Chapter 6.5 (commencing with Section 8547 of the
Government Code), as determined by the State Personnel Board or the
court.
  SEC. 3.  Section 19683 of the Government Code is amended to read:
   19683.  (a) The State Personnel Board shall initiate a hearing or
investigation of a written complaint of reprisal or retaliation as
prohibited by Section 8547.3 within 10 working days of its
submission.  The executive officer shall complete findings of the
hearing or investigation within 60 working days thereafter, and shall
provide a copy of the findings to the complaining state employee or
applicant for state employment and to the appropriate supervisor,
manager, or appointing authority.  When the allegations contained in
a complaint of reprisal or retaliation are the same as, or similar
to, those contained in another appeal, the executive officer may
consolidate the appeals into the most appropriate format.  In these
cases, the time limits described in this subdivision shall not apply.

   (b) If the findings of the executive officer set forth acts of
alleged misconduct by the supervisor, manager, or appointing power,
the supervisor, manager, or appointing power may request a hearing
before the State Personnel Board regarding the findings of the
executive officer.  The request for hearing and any subsequent
determination by the board shall be made in accordance with the board'
s normal rules governing appeals, hearings, investigations, and
disciplinary proceedings.
   (c) If, after the hearing, the State Personnel Board determines
that a violation of Section 8547.3 occurred, or if no hearing is
requested and the findings of the executive officer conclude that
improper activity has occurred, the board may order any appropriate
relief, including, but not limited to, reinstatement, backpay,
restoration of lost service credit, if appropriate, and the
expungement of any adverse records of the state employee or applicant
for state employment who was the subject of the alleged acts of
misconduct prohibited by Section 8547.3.
   (d) Whenever the board determines that a manager or supervisor has
violated Section 8547.3, it shall cause an entry to that effect to
be made in the manager's or supervisor's official personnel records.
Adverse action shall also be invoked by the appointing power against
the offending manager or supervisor in accordance with Sections
8547.8 and 19572.
   (e) Notwithstanding Section 8547.8, any state officer or employee
filing a complaint of reprisal or retaliation pursuant to subdivision
(a) also shall have previously filed a complaint of improper
governmental activity with the State Auditor, pursuant to Section
8547.7, or with the Inspector General, pursuant to Section 6129 of
the Penal Code.
   (f) In order for the Governor and the Legislature to determine the
need to continue or modify state personnel procedures as they relate
to the investigations of reprisals or retaliation for the disclosure
of information by public employees, the State Personnel Board, by
June 30 of each year, shall submit a report to the Governor and the
Legislature regarding complaints filed, hearings held, and legal
actions taken pursuant to this section.
  SEC. 4.  Section 289.6 of the Penal Code is amended to read:
   289.6.  (a) (1) An employee or officer of a public entity health
facility, or an employee, officer, or agent of a private person or
entity that provides a health facility or staff for a health facility
under contract with a public entity, who engages in sexual activity
with a consenting adult who is confined in a health facility is
guilty of a public offense.  As used in this paragraph, "health
facility" means a health facility as defined in subdivisions (b),
(e), (g), (h), and (j), and subparagraph (C) of paragraph (2) of
subdivision (i) of Section 1250 of the Health and Safety Code, in
which the victim has been confined involuntarily.
   (2) An employee or officer of a public entity detention facility,
or an employee, officer, or agent of a private person or entity that
provides a detention facility or staff for a detention facility, or
person or agent of a public or private entity under contract with a
detention facility, or a volunteer of a private or public entity
detention facility, who engages in sexual activity with a consenting
adult who is confined in a detention facility, is guilty of a public
offense.
   (3) An employee with a department, board, or authority under the
Youth and Adult Correctional Agency or a facility under contract with
a department, board, or authority under the Youth and Adult
Correctional Agency, who, during the course of his or her employment
directly provides treatment, care, control, or supervision of
inmates, wards, or parolees, and who engages in sexual activity with
a consenting adult who is an inmate, ward, or parolee, is guilty of a
public offense.
   (b) As used in this section, the term "public entity" means the
state, federal government, a city, a county, a city and county, a
joint county jail district, or any entity created as a result of a
joint powers agreement between two or more public entities.
   (c) As used in this section, the term "detention facility" means:

   (1) A prison, jail, camp, or other correctional facility used for
the confinement of adults or both adults and minors.
   (2) A building or facility used for the confinement of adults or
adults and minors pursuant to a contract with a public entity.
   (3) A room that is used for holding persons for interviews,
interrogations, or investigations and that is separate from a jail or
located in the administrative area of a law enforcement facility.
   (4) A vehicle used to transport confined persons during their
period of confinement.
   (5) A court holding facility located within or adjacent to a court
building that is used for the confinement of persons for the purpose
of court appearances.
   (d) As used in this section, "sexual activity" means:
   (1) Sexual intercourse.
   (2) Sodomy, as defined in subdivision (a) of Section 286.
   (3) Oral copulation, as defined in subdivision (a) of Section
288a.
   (4) Penetration, however slight, of the genital or anal openings
of another person by a foreign object, substance, instrument, or
device, for the purpose of sexual arousal, gratification, or abuse.
   (5) The rubbing or touching of the breasts or sexual organs of
another, or of oneself in the presence of and with knowledge of
another, with the intent of arousing, appealing to, or gratifying the
lust, passions, or sexual desires of oneself or another.
   (e) Consent by a confined person or parolee to sexual activity
proscribed by this section is not a defense to a criminal prosecution
for violation of this section.
   (f) This section does not apply to sexual activity between
consenting adults that occurs during an overnight conjugal visit that
takes place pursuant to a court order or with the written approval
of an authorized representative of the public entity that operates or
contracts for the operation of the detention facility where the
conjugal visit takes place, to physical contact or penetration made
pursuant to a lawful search, or bona fide medical examinations or
treatments, including clinical treatments.
   (g) Any violation of paragraph (1) of subdivision (a), or a
violation of paragraph (2) or (3) of subdivision (a) as described in
paragraph (5) of subdivision (d), is a misdemeanor.
   (h) Any violation of paragraph (2) or (3) of subdivision (a), as
described in paragraph (1), (2), (3), or (4) of subdivision (d),
shall be punished by imprisonment in a county jail not exceeding one
year, or in the state prison, or by a fine of not more than ten
thousand dollars ($10,000) or by both that fine and imprisonment.
   (i) Any person previously convicted of a violation of this section
shall, upon a subsequent violation, be guilty of a felony.
   (j) Anyone who is convicted of a felony violation of this section
who is employed by a department, board, or authority within the Youth
and Adult Correctional Agency shall be terminated in accordance with
the State Civil Service Act (Part 2 (commencing with Section 18500)
of Title 2 of Division 5 of the Government Code).  Anyone who has
been convicted of a felony violation of this section shall not be
eligible to be hired or reinstated by a department, board, or
authority within the Youth and Adult Correctional Agency.
  SEC. 5.  Section 6129 of the Penal Code is repealed.
  SEC. 6.  Section 6129 is added to the Penal Code, to read:
   6129.  (a) (1) For purposes of this section, "employee" means any
person employed by the Youth and Adult Correctional Agency, the
Department of Corrections, the Department of the Youth Authority, the
Board of Corrections, the Board of Prison Terms, the Youthful
Offender Parole Board, or the Inspector General.
   (2) For purposes of this section, "retaliation" means
intentionally engaging in acts of reprisal, retaliation, threats,
coercion, or similar acts against another employee who has done
either of the following:
   (A) Has disclosed  or is disclosing to any employee at a
supervisory or managerial level, what the employee, in good faith,
believes to be improper governmental activities.
   (2) Has cooperated  or is cooperating with any investigation of
improper governmental activities.
   (b) (1) Upon receiving a complaint of retaliation from an
employee, the Inspector General shall commence an investigation
within 30 days of receiving the complaint.  All investigations
conducted pursuant to this section shall be performed, where
applicable, in accordance with the requirements of Chapter 9.7
(commencing with Section 3300) of Title 1 of Division 4 of the
Government Code.
   (2) When investigating a complaint, in determining whether
retaliation has occurred, the Inspector General shall consider, among
other things, whether any of the following either actually occurred
or were threatened:
   (A) Unwarranted or unjustified staff changes.
   (B) Unwarranted or unjustified letters of reprimand or other
disciplinary actions, or unsatisfactory evaluations.
   (C) Unwarranted or unjustified formal or informal investigations.

   (D) Engaging in acts, or encouraging or permitting other employees
to engage in acts, that are unprofessional,, or foster a hostile
work environment.
   (E) Engaging in acts, or encouraging or permitting other employees
to engage in acts, that are contrary to the rules, regulations, or
policies of the workplace.
   (3) Upon authorization of the complainant employee, the Inspector
General may release the findings of the investigation of alleged
retaliation to the State Personnel Board for appropriate action.
   (c) Any employee at any rank and file, supervisory, or managerial
level, who intentionally engages in acts of reprisal, retaliation,
threats, coercion, or similar acts against another employee, pursuant
to paragraph (2) of subdivision (a), shall be disciplined by adverse
action as provided in Section 19572 of the Government Code.  If no
adverse action is taken, the State Personnel Board shall invoke
adverse action proceedings as provided in Section 19583.5 of the
Government Code.
   (d) (1) In addition to all other penalties provided by law,
including Section 8547.8 of the Government Code or any other
penalties that the sanctioning authority may determine to be
appropriate, any state employee at any rank and file, supervisory, or
managerial level found by the State Personnel Board to have
intentionally engaged in acts of reprisal, retaliation, threats, or
coercion shall be suspended for not less than 30 days without pay,
and shall be liable in an action for damages brought against him or
her by the injured party.  If the State Personnel Board determines
that a lesser period of suspension is warranted, the reasons for that
determination must be justified in writing in the decision.
   (2) Punitive damages may be awarded by the court if the acts of
the offending party are proven to be malicious.  If liability has
been established, the injured party also shall be entitled to
reasonable attorney's fees as provided by law.
   (e) Nothing in this section shall prohibit the employing entity
from exercising its authority to terminate, suspend, or discipline an
employee who engages in conduct prohibited by this section.
   (f) The Inspector General, the Youth and Adult Correctional
Agency, the Department of the Youth Authority, the Department of
Corrections, the Board of Corrections, the Youthful Offender Parole
Board, and the Board of Prison Terms shall refer matters involving
criminal conduct to the proper law enforcement authorities in the
appropriate jurisdiction for further action.  The entity making a
referral to the local district attorney shall also notify the
Attorney General of the action.  If the local district attorney
refuses to accept the case, he or she shall notify the referring
entity who shall subsequently refer the matter to the Attorney
General.  If the local district attorney has not acted on the matter,
the referring entity shall notify the Attorney General.  It is the
intent of the Legislature that the Department of Justice avoid any
conflict of interest in representing the State of California in any
civil litigation that may arise in a case in which an investigation
has been or is currently being conducted by the Bureau of
Investigation by contracting when necessary for private counsel.
  SEC. 7.  No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
only costs that may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
